Indictment for Sexual Performance by a Child

Facts: (Names have been changed to protect the privacy of those involved).

Jane Doe (Doe) was indicted under section 43.25 of the Penal Code for Sexual Performance by a Child. The indictment charges Doe with two counts of Sexual Performance by a Child. The first count alleges that “Jane Doe did then and there intentionally or knowingly authorize and induce a child younger than 18 years of age . . . to engage in sexual conduct or sexual performance, . . .” The second count alleges that Doe “intentionally or knowingly consent[ed] to the participation by Sally Doe, a child younger than 18 years of age, to participate [sic] in a sexual performance . . . and the defendant was then and there the parent and legal guardian; . . .” Section 43.25(b) of the Penal Code states,

A person commits an offense if, knowing the character and content thereof, he ploys, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

Nevertheless, the indictment does not allege Doe knew the character and content of the conduct or performance was sexual in nature.

Issue:

Does the indictment’s failure to allege in the first count that Doe knew the character and content of the conduct or performance render the indictment defective?

Short Answer:

Yes. “Knowing the character and content thereof” is the mens rea which the State must prove before it convicts a person of Sexual Performance by a Child. The indictment fails to allege Doe knew the character and content of Sally’s conduct or performance, which were allegedly sexual in nature. Because it has not been alleged in the indictment, the indictment is defective. Alternatively, “knowing the character and content thereof” is a particular intent and a material fact as applied to Doe. Under article 21.05 of the Code of Criminal Procedure, this particular intent must be alleged and proved by the State. The State has not alleged Doe knew the character and content of Sally’s conduct or performance. Therefore, the indictment is defective.

Discussion:

An indictment must allege all elements necessary to be proved to convict a person of a felony. Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989). And unless a statute defining a criminal offense “plainly dispenses” of it, a person’s mens rea is an element that must be alleged in the indictment. Tex. Pen. Code Ann. § 6.02(b) (Vernon 2003). The mens rea required for the commission of Sexual Performance by a Child, Tex. Pen. Code Ann. § 43.25, is that a person must “‘know[] the character and content of’ the conduct [or performance] induced is sexual in nature.” Dornbusch v. State, 156 S.W.3d 859, 869 (Tex. App.—Corpus Christi 2005, pet. ref’d).. The indictment charging Doe does not allege she knew the content of the conduct or performance of a child younger than 18 years-old was sexual in nature. Rather, it alleges she “intentionally or knowingly authorize[d] and induce[d]” the child “to engage in sexual conduct or performance.” Therefore, the indictment does not allege the mens rea required to convict Doe of Sexual Performance by a Child. Because it does not allege the mens rea required to commit Sexual Performance by a Child, the indictment is defective.

Conclusion:

The indictment fails to allege the mens rea required by section 43.25(b) of the Texas Penal Code. This is an element necessary to be alleged and proved at trial. Because it has not been alleged in the indictment, the indictment is defective.

Discussion (In the Alternative):

The State may argue that by stating Doe intentionally or knowingly authorized or induced the child’s sexual conduct or performance, the indictment is not defective. An indictment must allege all elements necessary to be proved to convict a person of a felony. Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989). When a statute defining an offense requires a “particular intent” which is a “material fact” in the commission of an offense, the indictment must allege that “particular intent” in the indictment. Tex. Code Crim. Proc. Ann. art. 21.05; Victory v. State, 547 S.W.2d 1 (Tex. Crim. App. 1976). In Victory, Victory was indicted for Indecency with a Child, section 21.11(a)(1) of the Penal Code. Victory v. State, 547 S.W.2d 1, 1 (Tex. Crim. App. 1976). Section 21.11(a)(1) states,

(a) A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact.

This statute does not list a required mens rea for the commission of Indecency with a Child, so the State alleged Victory “knowingly and intentionally engage[d] in sexual contact with J___ V___.” Victory, 547 S.W.2d at 2. However, “sexual contact” is defined in a different section of the same chapter of the penal code as touching “with the intent to arouse or gratify the sexual desire of any person.” Tex. Pen. Code Ann. § 21.01. Victory argued “intent to arouse” was a particular intent which was a material fact, and the State needed to allege it in the indictment. Victory, 547 S.W.2d at 2. The Court of Criminal Appeals agreed, and because the State failed to allege it in the indictment, the court reversed Victory’s conviction. Id. at 2.

However, a particular intent within a statute may not be a material fact in a specific case. In Cardenas v. State, the State charged Cardenas with violating section 43.01(a) and alleged in an information that Cardenas “knowingly offered and agree[d] to engage in sexual conduct, to-wit: sexual contact.” 640 S.W.2d 291, 292 (Tex. Crim. App. 1982). The State did not allege Cardenas had the “intent to arouse” when she knowingly offered and agreed to engage in sexual conduct. Id. Relying on Victory v. State, Cardenas argued the information was defective because it did not allege the particular intent, “intent to arouse.” Id. The Court of Criminal Appeals rejected her argument because the intent to arouse was not a material fact in her case. Id. at 292-93. The court reasoned the act alleged was not sexual contact but offering sexual contact and the intent to arouse does not need to be present when a person offers sexual contact. Id. Therefore, in as applied to Cardenas, the intent to arouse was a particular intent, but it was not a material fact. Id. And the information was not defective for failing to allege Cardenas possessed the intent to arouse when she offered to engage in sexual conduct. Id.

And like “intent to arouse” in Victory, “knowing the character and content [of the sexual conduct or performance engaged in by a child],” Tex. Pen. Code Ann. § 43.25(b), is a particular intent and a material fact which the State must allege to prove Doe is guilty of Sexual Performance by a Child. Section 43.25(b) of the Penal Code states,

(b) A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

This statute does not specify the state of mind which needs to accompany a person’s employment, authorization, or inducement of a child to engage in sexual conduct or performance, and the State may have been justified in alleging Doe’ intentionally or knowingly authorized and induced a child’s sexual conduct or performance. But section 43.25(b) requires a person to know the conduct or performance is “sexual in nature”—a particular intent—in addition to the state of mind the person possessed during the employment, authorization, or inducement of the child. Tex. Pen. Code Ann. § 43.25(b); Dornsbusch, 156 S.W.3d at 869.

And the particular intent of “knowing the character and content” is a material fact. A person cannot be criminally responsible unless he knows the conduct or performance engaged in by a child is “sexual in nature.” Dornbusch, 156 S.W.2d at 869. Consider, hypothetically, a high-school drama teacher who requires her students to choose and to perform a scene from a play in front of the rest of the class. Prior to the performance of the scene, he must authorize the students’ selections. A group of students approaches the teacher with a scene from the musical “Hair.” The teacher reads the scene, and finding nothing objectionable, authorizes the performance of it. The students selected the scene because, unbeknownst to the teacher, during professional performances of it, one actor disrobes and jumps into the lap of an unsuspecting audience member. When the group of students performs the scene before the class, a sixteen-year-old boy, the school class clown, takes off his clothes, and completely naked jumps into the lap of another student before his teacher can stop him. The conduct and performance involved in the scene from “Hair” fall squarely into the definition of sexual conduct and performance under section 43.25 of the Penal Code, and the teacher knowingly authorized the students to perform it. But the teacher cannot be convicted because he did not know the sexual nature of the scene. Therefore, it is essential that a person know the sexual nature of a child’s conduct or performance before he can be convicted for Sexual Performance by a Child. Id. And because it essential for a person to know the sexual nature of a child’s conduct or performance, “knowing the character and content” of the conduct and performance is a material fact which must be alleged in an indictment charging a person of Sexual Performance by a Child.

The indictment charging Doe alleges she “did then and there intentionally or knowingly authorize and induce” Sally to engage in sexual conduct or sexual performance. Like the indictment in Victory, the indictment charging Doe alleges she acted intentionally or knowingly, but like the statute which Victory was accused of violating, the statute Doe is accused of violating does not simply require a person to act intentionally or knowingly: The statute in Victory requires intent to arouse, and Sexual Performance by a Child requires Doe to have known of the sexual nature of the conduct or performance she authorized or induced Sally to engage in. Both of these requirements are particular intents which are material facts that must be alleged and proved pursuant to article 21.05 of the Code of Criminal Procedure. And the indictment charging Doe of Sexual Performance by a Child does not allege she knew the character and content of Sally Doe’ conduct or performance. Because it does not allege she knew the character and content of Sally’s conduct or performance, the indictment fails to allege the particular intent required by section 42.25(b) of the Penal Code which is a material fact in this case. Therefore, the indictment is defective because it fails to allege Doe knew the character and content of Sally’s conduct or performance.

Conclusion (In the Alternative):

“Knowing the character and content thereof” is a particular intent and a material fact as applied to Doe. Under article 21.05 of the Code of Criminal Procedure, this particular intent must be alleged and proved by the State. The State has not alleged Doe knew the character and content of Sally’s conduct or performance. Therefore, the indictment is defective.